Bill Text: TX HB3198 | 2021-2022 | 87th Legislature | Introduced
Bill Title: Relating to the diagnosis, maintenance, and repair of digital electronic equipment.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-03-19 - Referred to Business & Industry [HB3198 Detail]
Download: Texas-2021-HB3198-Introduced.html
87R7954 JES-D | ||
By: Meza | H.B. No. 3198 |
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relating to the diagnosis, maintenance, and repair of digital | ||
electronic equipment. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subtitle C, Title 5, Business & Commerce Code, is | ||
amended by adding Chapter 113 to read as follows: | ||
CHAPTER 113. DIAGNOSIS, MAINTENANCE, AND REPAIR OF DIGITAL | ||
ELECTRONIC EQUIPMENT | ||
Sec. 113.001. DEFINITIONS. In this chapter: | ||
(1) "Authorized repair provider" means an individual | ||
or business entity that is not an affiliate of but has an | ||
arrangement with an original equipment manufacturer: | ||
(A) under which the original equipment | ||
manufacturer grants to the individual or business entity a license | ||
to use a trade name, service mark, or other proprietary identifier | ||
for the purpose of offering diagnosis, maintenance, or repair | ||
services for digital electronic equipment under the name of the | ||
original equipment manufacturer; or | ||
(B) to offer diagnosis, maintenance, or repair | ||
for digital electronic equipment services on behalf of the original | ||
equipment manufacturer. | ||
(2) "Digital electronic equipment" means any product | ||
that, to function, depends wholly or partly on digital electronics | ||
embedded in or attached to the product. | ||
(3) "Documentation" means any manual, diagram, | ||
reporting output, service code description, schematic, or other | ||
guidance or information provided to an authorized repair provider | ||
used in the diagnosis, maintenance, or repair of digital electronic | ||
equipment. | ||
(4) "Embedded software" means any programmable | ||
instructions provided on firmware that is delivered with digital | ||
electronic equipment or with a replacement part for that equipment | ||
for the purpose of equipment operation, including all relevant | ||
patches and fixes made by the original equipment manufacturer of | ||
the digital electronic equipment or replacement part for that | ||
purpose. | ||
(5) "Fair and reasonable terms" means: | ||
(A) with respect to making available a | ||
replacement part or a tool that is not software, making the part or | ||
tool available: | ||
(i) under costs and terms equivalent to the | ||
most favorable net cost and terms offered to an original equipment | ||
manufacturer's authorized repair provider for obtaining an | ||
equivalent part or tool, accounting for any discounts, rebates, | ||
means of enabling fully restored and updated functionality, rights | ||
of use, convenience of delivery, or other incentive program offered | ||
to the authorized repair provider, or any additional cost, burden, | ||
or impediment the manufacturer imposes on an independent repair | ||
provider; | ||
(ii) without any condition, substantial | ||
obligation, or restriction that is not reasonably necessary to | ||
allow the owner or independent repair provider to engage in the | ||
diagnosis, maintenance, or repair of the manufacturer's digital | ||
electronic equipment; and | ||
(iii) without conditioning that | ||
availability on the recipient being an authorized repair provider; | ||
and | ||
(B) with respect to making available a tool that | ||
is software, making the tool available at no charge, without | ||
requiring authorization or Internet access, and without imposing | ||
any other impediment to access or use of the tool in a manner that | ||
impairs the efficient and cost-effective diagnosis, maintenance, | ||
or repair of the equipment; or | ||
(C) with respect to making available | ||
documentation, including any relevant updates to the | ||
documentation, making the documentation available at no cost, | ||
except that an original equipment manufacturer may charge the | ||
reasonable actual cost of preparing and sending a copy of the | ||
documentation when the documentation is requested in physical | ||
printed form. | ||
(6) "Firmware" means a software program or set of | ||
instructions programmed on digital electronic equipment or on a | ||
replacement part for the equipment that allows the equipment or | ||
replacement part to communicate with itself or other computer | ||
hardware. | ||
(7) "Independent repair provider" means an individual | ||
or business entity operating in this state: | ||
(A) who does not, on the individual or entity's | ||
own behalf or through an affiliate, have an arrangement with an | ||
original equipment manufacturer as described by Subdivision (1) and | ||
who is engaged in diagnosis, maintenance, or repair of digital | ||
electronic equipment; or | ||
(B) that is an original equipment manufacturer, | ||
or who is an individual or business entity who has an arrangement | ||
with that original equipment manufacturer as described by | ||
Subdivision (1), only with respect to diagnosis, maintenance, or | ||
repair of digital electronic equipment not manufactured by or sold | ||
under the name of that original equipment manufacturer. | ||
(8) "Manufacturer of motor vehicle equipment" means a | ||
business entity engaged in the business of manufacturing or | ||
supplying components that are used in the manufacture, maintenance, | ||
or repair of a motor vehicle. | ||
(9) "Motor vehicle" means a vehicle that is designed | ||
for transporting individuals or property on a street or highway and | ||
is certified by the vehicle's manufacturer under all applicable | ||
federal safety and emissions standards and requirements for | ||
distribution and sale in the United States. The term does not | ||
include: | ||
(A) a motorcycle; or | ||
(B) a recreational vehicle or manufactured home | ||
equipped for habitation. | ||
(10) "Motor vehicle dealer" means an individual or | ||
business entity who in the ordinary course of business: | ||
(A) sells or leases new motor vehicles under a | ||
franchise agreement; | ||
(B) holds a license issued under Chapter 2301, | ||
Occupations Code, and a general distinguishing number issued under | ||
Chapter 503, Transportation Code; and | ||
(C) is engaged in the diagnosis, maintenance, or | ||
repair of motor vehicles or motor vehicle engines under the | ||
franchise agreement. | ||
(11) "Motor vehicle manufacturer" means a business | ||
entity that manufactures or assembles new motor vehicles. | ||
(12) "Original equipment manufacturer" means a | ||
business entity that sells, leases, or supplies new digital | ||
electronic equipment manufactured by or on behalf of the business | ||
entity. | ||
(13) "Owner" means an individual or business entity | ||
who owns or leases digital electronic equipment purchased or used | ||
in this state. | ||
(14) "Replacement part" means a new or used | ||
replacement part made available by the original equipment | ||
manufacturer for the purpose of maintenance or repair of digital | ||
electronic equipment manufactured, sold, or supplied by the | ||
original equipment manufacturer. | ||
(15) "Tool" means any software program, hardware | ||
implement, or other apparatus used for diagnosis, maintenance, or | ||
repair of digital electronic equipment, including software or | ||
another mechanism that: | ||
(A) provisions, programs, or pairs a new part; | ||
(B) calibrates functionality; or | ||
(C) performs any other function required to | ||
restore the equipment to fully functional condition. | ||
(16) "Trade secret" has the meaning assigned by 18 | ||
U.S.C. Section 1839, as that section existed on January 1, 2021. | ||
Sec. 113.002. INAPPLICABILITY OF CHAPTER. This chapter | ||
does not apply to: | ||
(1) a manufacturer of motor vehicle equipment; | ||
(2) a motor vehicle manufacturer; | ||
(3) a motor vehicle dealer acting in that capacity; or | ||
(4) a product or service of an entity described by | ||
Subdivisions (1) through (3). | ||
Sec. 113.003. REQUIREMENTS FOR ORIGINAL EQUIPMENT | ||
MANUFACTURERS. (a) For digital electronic equipment, including | ||
parts for that equipment, sold or used in this state, the original | ||
equipment manufacturer of the equipment or part shall make | ||
available on fair and reasonable terms to any independent repair | ||
provider or to an owner of digital electronic equipment | ||
manufactured by or on behalf of, sold by, or supplied by the | ||
original equipment manufacturer: | ||
(1) documentation, replacement parts, and tools, | ||
including any updates to information or embedded software, for that | ||
equipment or replacement part; and | ||
(2) for equipment containing an electronic security | ||
lock or other security-related function, any special | ||
documentation, replacement part, or tool needed to disable and | ||
reset the lock or function when disabled in the course of diagnosis, | ||
maintenance, or repair of the equipment. | ||
(b) An original equipment manufacturer may make available | ||
the documentation, replacement part, or tool under Subsection | ||
(a)(2) through an appropriate secure release system. | ||
(c) Notwithstanding Subsection (a), if an original | ||
equipment manufacturer provides an express warranty with respect to | ||
digital electronic equipment and the wholesale price of that | ||
equipment is at least $100, the manufacturer shall provide any | ||
replacement part, tool, or documentation to enable repair of that | ||
equipment during the manufacturer's warranty period at an equitable | ||
price, including convenience of delivery and enabling | ||
functionality, that takes into consideration: | ||
(1) the actual cost to the manufacturer to prepare and | ||
distribute the part, tool, or documentation, without considering | ||
research and development costs; | ||
(2) the ability of owners and independent repair | ||
providers to afford the part, tool, or documentation; and | ||
(3) the means by which the part, tool, or | ||
documentation is distributed. | ||
(d) This section does not require an original equipment | ||
manufacturer to make available a replacement part if the part is no | ||
longer available to the original equipment manufacturer. | ||
(e) An original equipment manufacturer who offers the | ||
services of diagnosis, maintenance, or repair of the manufacturer's | ||
own digital electronic equipment, and who does not have an | ||
authorized repair arrangement with an individual or business entity | ||
that is not an affiliate, is considered to be an authorized repair | ||
provider with respect to that equipment. | ||
Sec. 113.004. CONSTRUCTION OF CHAPTER. (a) Nothing in this | ||
chapter may be construed to require an original equipment | ||
manufacturer to divulge a trade secret to an owner or an independent | ||
service provider except as necessary to provide documentation, | ||
replacement parts, and tools on fair and reasonable terms as | ||
provided by this chapter. | ||
(b) Nothing in this chapter may be construed to alter the | ||
terms of an arrangement described by Section 113.001(1) between an | ||
authorized repair provider and original equipment manufacturer, | ||
including the performance or provision of warranty or recall repair | ||
work by the authorized repair provider on behalf of the original | ||
equipment manufacturer under an arrangement described by Section | ||
113.001(1), except that any provision in an agreement between an | ||
authorized repair provider and original equipment manufacturer | ||
that purports to waive, avoid, restrict, or limit the original | ||
equipment manufacturer's obligation to comply with this chapter is | ||
void and unenforceable. | ||
Sec. 113.005. DECEPTIVE TRADE PRACTICE. A violation of | ||
this chapter is a deceptive trade practice in addition to the | ||
practices described by Subchapter E, Chapter 17, and is actionable | ||
under that subchapter. | ||
SECTION 2. To the extent of a conflict between Chapter 113, | ||
Business & Commerce Code, as added by this Act, and a provision of | ||
an agreement between an authorized repair provider and original | ||
equipment manufacturer entered into before the effective date of | ||
this Act, the provision of the agreement prevails. | ||
SECTION 3. This Act takes effect September 1, 2021. |